R v Jeong Ming FOO - [2008] NSWSC 587

No judgment structure available for this case.

CITATION: R v Jeong Ming FOO [2008] NSWSC 587

HEARING DATE(S): 15, 16, 19, 20, 21, 22, 23, 26, 28 and 30 May 2008

JUDGMENT DATE :
12 June 2008

JUDGMENT OF: Harrison J

DECISION: Verdict of not guilty

CATCHWORDS: CRIMINAL LAW – Murder – s 132(1) Criminal Procedure Act 1986 - election by accused for trial by judge alone – 11 week old victim - son of accused – deceased died from diffuse axonal injury to brain caused by non-accidental acceleration/deceleration forces from shaking or impact – circumstantial case – reasonable alternative hypothesis - degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved not so high that the contrary could not reasonably be supposed – no satisfaction beyond reasonable doubt that the accused was the person who inflicted the injuries to the deceased that ultimately led to his death – not guilty verdict

LEGISLATION CITED: Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

PARTIES: Crown
Jeong Ming Foo (Accused)

FILE NUMBER(S): SC 4038/2007

COUNSEL: W L Robinson QC (Crown)
P R Boulten SC (Accused)

SOLICITORS: Director of Public Prosecutions (Crown)
Murphy's Lawyers Inc (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

12 June 2008

4038/2007 R v Jeong Ming FOO
JUDGMENT

Introduction

1 This is a trial by judge alone following an election by the accused under s 132(1) of the Criminal Procedure Act 1986 made on 6 May 2008. That election, endorsed with the consent of the Crown, was filed in this court on 7 May 2008.

2 The accused is charged with the murder of his son You Qi Foo ("the deceased") who died on 31 August 2006. The deceased was born in January 2006 and was the second child of the accused and his wife Jui Ying Hoon. Their first son Dunyao was born in January 2003.

3 The accused was born in Singapore in 1973. He was married to Jui Ying Hoon in 2001. They came to Australia on a Permanent Residency Visa in May 2005. At the time of the events that give rise to the present charge, the accused was living with his wife and the deceased, together with his sister and her husband in a townhouse in Telopea, a suburb of Sydney. Their first son was temporarily living in Singapore with the accused's parents in anticipation of the birth of the deceased.

4 At about 11.30am on Tuesday 14 March 2006 the accused and his wife attended Dr Goh Chong Maw at the Meadowbank Medical Centre for the purpose of having the deceased vaccinated for tetanus, diphtheria, inactive poliomyelitis and hepatitis B as well as pneumococcal conjugate. He received two injections, one in each buttock. The deceased was apparently normal after the immunisation and Dr Maw detected no abnormality.

5 The deceased, who had also at all times before that been a normal healthy baby, would appear on one view to have had a mild reaction to the vaccine but in any event to have developed symptoms that made him irritable and increasingly sleepy although restless with a fever and he became uninterested in feeding. This continued for the next several days. On Sunday 19 March 2006 at approximately 3.00pm the accused and his wife took the deceased to their local general practitioner Dr Jeyaratnam at the Carlingford Medical Clinic for a consultation. The doctor advised them that the child was in a satisfactory condition but that if he deteriorated - in particular, if there was any lethargy, decrease in feeding, any further vomiting or bile stained vomitus - they should immediately take the child to Westmead Children's Hospital for treatment. Dr Jeyaratnam was of the opinion that on the day of the presentation the deceased was a reasonably healthy baby.

6 On the morning of Monday 20 March 2006 the condition of the deceased changed dramatically. It will be necessary to return to the circumstances in which this change occurred in more detail later in these reasons. Briefly, however, according to the accused, when he was carrying the deceased from the downstairs portion of the townhouse upstairs to hand him to his wife, the crying or breathing pattern of the deceased audibly changed and he appeared to go soft or limp in the arms of the accused. Rather than attempting to resuscitate the child, or call an ambulance to the premises, the accused and his wife drove immediately to the hospital where he was delivered into the care of the medical staff.

7 The deceased was presented to the Emergency Ward of Westmead Children's Hospital at approximately 9.00am on that day. His mother handed him to Sister Dollarhide at the triage desk. He was by then completely grey in colour, totally limp and was not breathing. It was later determined that the child had had a cardiac arrest. She hooked up the child to oxygen and commenced CPR. He was transferred to the ICU. It took approximately 45 minutes to revive the child.

8 The deceased was in due course found to have sustained injuries that included a right parietal skull fracture, subdural intracranial haemorrhages with subacute collection in the occipital region and posterior fossa, probably of a different age, suspected fractures of the seventh and eighth left ribs, the fourth and fifth right ribs, and a possible fracture of the left humerus. Subsequent examination of the deceased revealed bilateral intra-retinal haemorrhages and a shearing injury to sections of the brain consistent with, or suggestive of, a non-accidental injury such as violent shaking. The deceased was also found to have had early stage vitamin D deficiency with a mild elevation in parathyroid hormone and vitamin C deficiency with no evidence of scurvy. There was no evidence of osteopenia or osteogenesis imperfecta.

9 The deceased continued to be cared for at the hospital in a serious but stable condition for four months before being transferred to the Allawah Hospital at Bexley on 25 July 2006. He remained there until 31 August 2006 when he died from pneumonia secondary to injuries that he had suffered at some time prior to his presentation to Westmead Children's Hospital on 20 March 2006.

The facts

10 Prior to the death of the deceased, the accused gave two electronically recorded interviews to the police and cooperated as well in the making of an audio/video recording of a walk-through of the Telopea premises where he resided with his wife and the deceased. These all became evidence without objection in the proceedings. A third electronically recorded interview with the accused on 9 December 2006 following his arrest on that day was also tendered without objection. It produced no significant material beyond an exercise by the accused of his right to remain silent.

11 The accused did not give evidence. However, his detailed version of the circumstances and of the events that took place between the date of the deceased's immunisation and the presentation to the Emergency Department of the hospital is to be found in the ERISPs conducted on 24 March 2006 and 31 March 2006 and the electronic recording of the walk through of the premises on 19 April 2006. These matters are set out and discussed in more detail below.

The first ERISP – 24 March 2006

12 In the first ERISP the accused said that, on the Tuesday prior to the deceased's admission to hospital, he had been immunised following which he had become quite unsettled with a fever. The accused said the deceased was not very stable and was refusing to eat. On the morning of Monday 20 March 2006 the accused woke up at about eight o'clock. The deceased was crying so he brought him downstairs to try to feed him there but he did not want to eat. The accused put the deceased on a bassinette that was located downstairs and went to the toilet. When he came back from the toilet he could hear the deceased crying louder and louder. The accused said that he then went and picked up the deceased "very fast" and tried to pacify him but he continued to cry. He then decided to take the deceased upstairs to pass him to his wife but before he could do so the child's body went soft. He said, "It's like whole body is just, like, soft and without no, without any energy". He then passed the baby to his wife, asked her to change, and they rushed him to hospital.

13 The accused said that on the Wednesday following the immunisation they had found that the deceased had "a big fever" and so they gave him Panadol. It would appear that he initially improved slightly but after that on Thursday the deceased did not want to sleep. The accused thought he might have had a fever. However, after Thursday he wanted to sleep more and more. The accused said that around Saturday or Sunday the deceased woke up every hour and cried constantly. On Saturday morning the accused went to a trade show but that afternoon the deceased was again not feeding well. He said, "he just want to sleep". The accused also said, "then after sleeping for a while he want to wake up again and cry, cry, cry again. We try to feed him. He still did not want to feed".

14 On Thursday 16 March 2006 the accused had noticed that the deceased had cracked lips. He noticed this after the deceased had had his face on the accused's shoulder. This was close to midnight and the accused said he was up at that time trying to pacify the deceased and feed him. The accused described how he held the deceased over his shoulder with one hand on his bottom and the other hand supporting his back. The accused noticed that the deceased was crying a lot more on Thursday and Friday and was not taking as much milk from a bottle as normal.

15 The deceased went to visit his uncle between approximately 8.30am and 1.00pm on Sunday. When he returned his wife told the accused that the deceased had vomited. This had a greenish appearance. The accused and his wife were so concerned that they made a call to the Westmead Hotline and described what they had seen. They were advised to take the deceased to a doctor. They took the deceased to Dr Jeyaratnam at about 3.00pm that day. (Dr Jeyaratnam gave evidence that the deceased appeared to her to be normal following the examination that she performed). The deceased would appear to have slept fitfully on that Sunday night waking hourly when he would be fed and comforted. This pattern continued throughout the night until the following morning.

16 The accused described on a number of occasions how he picked the deceased up "very fast" from the bassinette that morning. He placed his hands around the baby's chest under his arms and lifted him to a position on his shoulder without supporting his head. The accused said that he then rocked or jiggled or balanced the deceased as he walked around the room attempting once again to pacify him. The accused also described the change in the way that the deceased was crying at the point where his body went soft or limp. The accused said that when he tried to pass the deceased to his wife he said, "I hear some, the, the crying is, like, a bit different, like, (DEMONSTRATES AUDIBLY), something like this. It's like, I don't know how to describe it but it's, like, not, not very good. Then the whole, then his whole body just become, like, soft". The accused said that he wanted to pass the deceased to his wife because she could normally "pacify him easier".

17 The accused recalled that they arrived at the hospital sometime after 8.30am on Monday 20 March 2006. The accused was subsequently informed that the deceased had had a cardiac arrest.

18 Part of the electronically recorded interview with the accused on 24 March 2006 included the following questions and answers:

"Q. And has the hospital spoke [sic] to you about what injuries You Qi does have?
A. Yeah. It's mentioned that the, the bleeding and, like, the bleeding might be due to, like, shaking of the baby. So, that's the cause of it. So, I'm thinking that that may be caused by me because I'm bringing too fast and that's why I feel very guilty about.

Q. OK. You're saying that the hospital told you that the injuries may have been caused by the shaking of the baby and that you think that that may be when you moved him up?
A. (NO AUDIBLE REPLY)

Q Is there any other way that you could explain how the injuries occurred?
A. You mean -?

Q. Is there anything else you know about what has happened to You Qi that could explain his injuries?
A. No. Probably during the crying I did, like, smack on his buttock and say, hey naughty boy, why not eating, you hungry.

19 That sequence was followed shortly after by the following questions and answers:

"Q. When you say you, you smacked him on the buttocks and the stomach . . .
A. Yeah.

Q. . . . was that on the same day or a different day or something else?
A. Yeah, same day.

Q. And how did you smack him on the bottom and buttocks?
A. So . . .

Q. Sorry, the buttocks and stomach?
A. So, just smack this way, just hit the buttock and the stomach this way.

Q. O.K, and how hard did you hit him?
A. I, I don't know but I think should be OK, yeah, not too hard.

Q. Did you notice anything about You Qi after you hit him on the buttocks or stomach?
A. No.

*****

Q. Did the way that You Qi cry [sic] change after you smacked him on the buttocks and the stomach?
A. Yeah, a bit, like, like, probably he, he feel the pain. Yeah, because, like, I see (INAUDIBLE) cry a bit and then he settle down again.

Q. Yeah.
A. Yeah.

20 The accused was asked to think very carefully about the time since the deceased was born. He was asked whether or not the deceased had had any other injuries before this. The accused said that the deceased had not had any injuries that had been noticed because he had been smiling and having fun like a normal baby.

21 The accused was asked, "Have you shaken your baby?" He replied, "No. OK, I don't know how you consider shaking. It's like moving and all that". The accused was then asked, "Is what you done [sic] of that last week that you've told me about any different from how you've tried to pacify the child in times before that? Is it different or the same or something else?" The accused asked, "You mean the carrying method?" The interviewer said, "Yes". The accused replied, "Yeah, it's different".

22 Then followed a sequence of questions and answers in these terms:

"Q. And so how has that been different in the last week?
A. Sometimes I used this, sometimes I used that but . . . only on Monday that I just pick up very fast that way and then try to pacify this way and just move . . . I guess the way that I move is probably heavier. I mean, rocking heavier, that's causing it.

Q. OK. When you say, rocking heavier, can you explain that more for me?
A. In this way I walk, I move up and down, this way.

Q. OK.
A. So . . .

Q. Shaking of a baby is usually, it can be in a lot of different ways but it's being held and being moved quite, how would you describe it?

CONSTABLE HUNTER

Q. Sharply . . .

SENIOR CONSTABLE NORTHEY

Q. Yeah . . .

CONSTABLE HUNTER

Q. . . like, very abrupt movement.

SENIOR CONSTABLE NORTHEY

23 Slightly later during the same interview, but still referring to the way in which the accused said that he picked up the deceased from the bassinette on the Monday morning, the following series of questions and answers were recorded:

"Q. When you picked him up that way, were you are angry?
A. (NO AUDIBLE REPLY)

Q. You'd been awake all night, you hadn't slept all night, every hour you were up, were you angry at your child?
A. Think of it right now, I think there's a bit of anger in there but also anxiousness in there because he's, like, not eating for a few days and say, hey, why are you not eating again and, I say, bringing up this way and just try to calm him down.

Q. That . . .
A. So, I think there is probably some anger in there.

Q. And you were obviously stressed?
A. Yeah.

Q. You're not working, you're, as, as much as possible and the child’s having problems, did you deliberately hurt your child?
A. No.

Q. Do you know of anyone else that deliberately hurt your child?
A. No. Everybody love him. I think that's might be the, might be me that is causing the, him to have this discomfort, injury.

Q. You've said that a couple of times. Why do you say that, what makes you say that?
A. Because I can only remember any situation that I causing that because, because [from my] remember last time I be waking him and hitting of stomach, I think should be all right for my feel and after that he slept normal, with sleeping the normal way so I think he's quite OK. It's only when the whole thing that I bring it up because . . . to have the, the stoppage, I don't know, at that time I don't know what is the stoppage of heart but of causing some, some sudden, different reaction, like the, the softening which I think that may be the, might cause, that causes him that thing to happen and when the doctor told me that there is some blood in the back and also the eye . . . the shaking so then I recall that, that day when I tried to bring up and move it this way, so and rocking, so it maybe might cause . . . anxious or [ could be] like you say, for the anger in there, that rocking too hard causes him to, to have this sort of, his heart collapse over there.

Q. OK
A. So, that's, that's why I feel that I'm, when the doctor said he’s feel that might be the cause, me that's inflicting the cause of, of having the baby have the sudden collapse.

Q. OK. When you picked You Qi up fast, did you, was there any, did you think, maybe that hurt the child, was there anything that went through your head then or . . .
A. No, no, I say, that, that time I say, you're crying again, what are you hungry for, you are still not eating? If [ few days] hungry, why you are not eating? You know, I keep, . . . in the night . . . you hungry, maybe your stomach is making noise, why are you not eating, why are you not eating, so when I come from the wee and he's, he's like, he's crying again, it's like quite, quite frustrated in a way, you know.

Q. Yes.
A. But I was so anxious the way I said, why you not eating? Then this becomes straight away, don't cry, don't cry, that way

The second ERISP – 31 March 2006

24 The accused gave another description of what happened on the morning of Monday 20 March 2006. He described once again being upstairs and taking the deceased downstairs to try to pacify him and to give him a drink. However, the deceased did not want to drink and kept "crying and crying". The accused put the deceased temporarily on the bassinette and went to the toilet. When he returned the deceased was crying "louder and louder", and the accused became anxious. He said, "I just pick up this way", demonstrating what he did as he said this. The accused said that he tried to pacify the deceased but, in effect, he continued to cry. He said he decided to take the child upstairs to give to his wife saying, "because my wife normally have a more soothing effect". The accused then said the following:

"A. OK. So when I go upstairs I was in the, in the room where I'm going to pass it to my wife. Pass the baby to my wife. What happened is that the, there's, the crying sound maybe becomes different, instead of crying become a, there's some difficulty in breathing that kind of noise. . . . Then what happened is that after he just become limp."

25 The accused said that when he put the deceased on the bassinette he did so gently as normal. He was in the bathroom for less than two minutes. He described and demonstrated once again the way in which he picked the child up from the bassinette. He said, "So I just like hold to his, below his arm . . . pick up fast this way". The accused said that he did not really remember how the deceased reacted when he picked him up that way. He said, "What I know is that I just, I just to pick him up, and just, Oh don't cry, don't cry, don’t cry and just . . .". He said that he probably did not support the child's head when he picked him up.

26 The accused said that the manner in which he picked up the deceased on that morning was probably faster than the normal way that he would pick him up. He was asked whether at any stage he was feeling frustrated by the child not having stopped crying throughout the night. The accused replied, "Probably but a bit of like more on the worrying side".

27 The accused was informed that the deceased had a large subdural haemorrhage on his brain and that the doctors had indicated that it had been caused by a non-accidental injury. The accused was asked if he understood what that meant. He replied, "Not accident, that means that, means done on purpose". The accused was asked whether or not he knew how the deceased could have sustained such an injury. The accused said that he did not know. He also said that he did not know how it was possible to get such an injury. The accused was told that a shaking of the baby causes the injury. The accused said, in effect, that he did not think anything he had done was "a shaking movement". He had never seen his wife shake their son, and he had not seen anyone else do so either.

28 The accused was then informed that the deceased had a fracture to his skull. That part of the interview in which this information emerged is as follows:

"Q. Yeah we've been told that there's a, a fracture to his skull.
A. Huh?

Q. OK. So there's a fracture on his skull and doctors have informed us that that is from a, an impact or a trauma to his skull. Do you understand that?
A. How's that, happen?

Q. I don't know, I'm asking you. You know how it could have happened?
A. No, I, I, I don't know.

Q. OK.
A. So how, how, how can, it can't be?

Q. OK But doctors have told me, OK. That someone has had to have thrown him or dropped him or hit him on the head with something. Have you ever thrown You Qi?
A. No.

Q. Have you ever dropped You Qi?
A. No.

Q. Have you ever thrown anything at You Qi?
A. No.

29 The accused was then informed about a number of other injuries apparently sustained by the deceased. The accused said that he did not have any knowledge of how such injuries could have been caused. The accused was also asked whether or not he knew anything in relation to fractures to two of the deceased's ribs. He replied, "Is it because the day I, I came too fast that . . . me? I'm not sure how, how it's been caused". The accused said that he had never seen anyone else lose control whilst they were caring for the deceased.

30 The accused referred once again to the incident at the bassinette. He said, "I am anxious that he's keep crying so I just picking up faster . . . I don't know why that day I just pick up this way. Probably it's, I am worried and anxious". Then followed these questions and answers:

"Q. What makes you think that the way you picked You Qi up could have caused these injuries?
A. OK. Because he goes, I mean, . . . he, he go limp after I bring him up. So when we bring him to hospital, you see him like in critical condition and during that time I'm keep asking whether it’s myself that, that bring him up too fast that causes him to like suddenly like, like, happen and, and just like how I say like, go limp or, or, or become in a critical condition so I'm keep, that's why in the hospital I keep thinking whether I'm the one that bring him up this way and cause a sudden, sudden like . . .

Q. So do you think that the way you picked You Qi up may have caused these injuries?
A. I don't know whether the way that I pick him up causes the injury but I know I'm anxious that time and I want to try to calm him down and pacify him but because of all the series of things happen I . . . him up . . . and suddenly he just go limp so I thought I might be the person that caused because seeing him in, in the hospital that way with all the tubes and all that is very sad and I keep thinking whether is it me that causes him to be in that situation.

Q. Mmm.
A. So in actual fact for, until now I'm still feeling very guilty whether I'm the one or is it, the action that I, I bringing up that, that causes him to be that way.

Q. So once you picked him up fast?
A. Yeah.

Q. How did you then hold him?
A. I just put him over my shoulder. Like when I mentioned that I just walk around and just pat him.

31 While he was at the hospital the accused had a conversation with Michelle Jubelin. Ms Jubelin gave evidence at the trial and this is referred to in more detail later. During the course of his second electronically recorded interview the accused was asked about whether or not he had had a conversation with her. The questions and answers relating to that topic are as follows:

"Q. OK. Do you remember anything else about that conversation you had with Michelle?
A. Yeah. Because after talking about that because of that I, I thought I might be the person that, that is causing You Qi to be . . . then she mentioned going to be, thing, some, somewhat, some child protection unit and some police is, is coming in.

Q. Mmm Mmm.
A. So then I feel worse because what happen is that it means I will probably be charged because police coming and police going to arrest me or . . .

Q. Mmm Mmm.
A. . . . I don't know what the police could do to me so but that's why I'm feeling that time. And probably I'm going to be charged so what happened is that then I asked her, What is the consequences for, for, I say, If the police come and will I be charged or whatever? Because I love my family so I want to like prepare, let's say if I charged what will happen to my family, I just want to know and because what happen is, I just want to know what happened to me so that I can do some plans for my family. I don't want to leave them like dangling and in difficulty so that's why I, I remember did ask her something like that.

Q. Mmm Mmm.
A. Yeah.

Q. What makes you think you'd be charged?
A. Like when I told you that time, that situation where the doctor tell me.

Q. Mmm Mmm.
A. OK. The baby is, is having that kind of injury and it's due to like, like what you mentioned the, the, the shaking of the baby.

Q. Mmm Mmm.
A. So the first thing I thought about, that I can think about is during the time . . . or not.

Q. Mmm Mmm.
A. So that might be shaking him.

Q. Mmm Mmm.
A. That . . . that's what I feel. So and that's why I might be the one that causes him to have that kind of, that, that he like . . . say, faint or, or in the kind of critical condition so I blame myself for that.

32 It was explained to the accused that the deceased had injuries that appeared to have been sustained at different times. He was asked how he felt about that. The accused gave the following answer:

"A. Which means that probably one of the injury's not done by me. Why I say so because let's say one of, one of the date is caused by me in bringing him up, then they say old injury that means it's done some other time so I don't know whether it happens where he, he fall or whatever, I'm not sure, what might cause the, the injury at the other position. So but, if you say that's just one then I suspect it might be me during that time that, that carry him because we just . . . the time that I carry him very fast during that time.

33 The accused was later asked whether or not it was reasonable to believe that he could have caused the injuries sustained by the deceased. He gave the following answer:

"A. I'm not sure but, but only that time, I only feel that after picking up I causes him to go and to, to, to, to be at that critical condition so I keep blaming myself but I don't know whether this injury is due, is caused by my movement that way that causes him to be that way."

34 The accused was asked whether or not he thought it was reasonable to hit an 11 week-old baby on the stomach or the bottom. He replied, "Well I'm not doing a hard hit, if it's hard then it's not reasonable, OK". The accused was also asked once again whether or not he thought he was the one who caused the injuries to the deceased. He replied, "No". He expanded upon that answer in the following terms:

"A. Because I love my baby, OK. So if that causes the baby to be that way so and if that happens I feel very, very guilty and that's why I, I say the things so because during that time emotionally I'm very sad. And I say the only way I can, my heart is so painful during that time because I thought I'm the one that causes the baby to be that way so if I would be punished because of that I will feel better because my heart is really painful during that time.

35 Finally, it was suggested to the accused that Michelle Jubelin had been told by the accused that, because he had caused the injury, he was concerned about whether or not he would have to pay hospital expenses related to his son's admission. The accused responded as follows:

"A. So if let's say I'm charged or whatever, nobody's earning anything for my family so how are we going to pay the bill if that's going to happen 'cause I don't want to put my family in a financial difficulty during that time.

The walk through – 19 April 2006

36 The accused participated in an electronically recorded walk-through at the Telopea premises during the course of which he again demonstrated and described what happened on Monday 20 March 2006. The things said and done by the accused on that occasion were consistent with his descriptions and demonstrations of what occurred on that day given during his electronically recorded interviews.

Other evidence

Dr Jeyaratnam

37 The evidence of Dr Jeyaratnam was not the subject of controversy. Her clinical observations of the deceased on the afternoon of Sunday 19 March 2006 were that he was then a normal baby with symptoms that were not suggestive to her of any non-accidental injury. She was unable to exclude a surgical problem in the bowel, meaning something that could not be detected conclusively upon clinical examination. She gave advice that the parents should take the baby to emergency if there was any lethargy or decreased feeding or vomiting or bile stained vomitus.

38 She was cross-examined about her observations of the accused and his wife:

"Q. Did both parents seem concerned about the baby's health and welfare?
A. Yes.

Keng Boon Foo

39 The sister of the accused and her husband gave evidence in the Crown case by way of written statement about what occurred on and after 20 March 2006. These witnesses were not cross-examined on their statements as they were in Singapore and unavailable to give oral evidence at the trial. No application was made for their evidence to be given by audiovisual link. Mr Boulten SC on behalf of the accused conceded that the grounds for the tender of those statements had been made out but sought to reserve his position to the extent that some material in one of them appeared to be inconsistent with the version of events given by the accused. Mr Boulten sought to emphasise that the position that he adopted ought not to be construed as an acceptance by him of the allegedly inconsistent evidence as the preferred version of events that it described. The uncle of the accused gave evidence about events on Sunday 19 March 2006. Matthias Pfeiffer, the accused's employer also gave evidence concerning some aspects of the accused's employment and related issues.

40 The accused's sister Keng Boon Foo returned to Singapore recently. The Crown applied to rely upon a statement given by her on 14 April 2006. This was not opposed. At that time she was living with the accused and his wife and her husband at the Telopea premises as previously described.

41 Ms Foo said that at the end of January 2006 the accused and his wife took the deceased to Singapore to visit her parents. She and her husband Hartanto Hartanto were already there at that time having arrived a week earlier. She and her husband returned to Australia in early to mid February. The accused with his wife and the deceased followed a week or so later.

42 Ms Foo said that since the birth of the deceased she and her husband had never been left alone with him to baby sit. The accused and his wife had always been present. She played with the deceased in the presence of his parents. The parents were his main carers.

43 It was Ms Foo's opinion that her brother and sister-in-law were good parents. She described the deceased as very fussy. He had to be fed at a certain angle and in a certain way. He liked to be picked up and carried all the time. Her brother and sister-in-law were the only ones who fed him. She sometimes heard the deceased crying during the night but not very often. She said that she was a heavy sleeper.

44 Ms Foo was aware that the deceased had been taken to be immunised on 14 March 2006. She remembers that date, as she was unwell and stayed home from work. The deceased's parents left in the morning and returned sometime in the afternoon. When they arrived home, the deceased was irritable. By that she meant "uncomfortable". He cried and he would go to sleep and wake up and cry again. After his immunisation the deceased was more irritable than normal. She said he was "different". He would be alright for a while and happy to play and then he would start to cry. He became fussier with his feeds.

45 Ms Foo recalls that one morning she went downstairs and her sister-in-law was there already and she commented that the deceased had been awake all night. When she returned from work later that day she was told that the deceased had been asleep all day. On Sunday 19 March 2006 she went out and when she returned her brother and sister-in-law were not at home. They arrived late in the afternoon. They informed her that they had taken the deceased to a doctor in Carlingford. Ms Foo said that the deceased seemed to be alright.

46 She did not hear the deceased crying at all during the night of 19 March 2006. On the morning of 20 March 2006 she said she awoke at about 7.00am. She went to the bathroom, brushed her teeth, changed her clothes and left for work. That was her usual routine. She thought that she would have left the house between 7.30am and 7.45am. She and her husband left at the same time as he drove her to work. When they left she recalled that her brother and sister-in-law were not up. She assumed that they were still asleep as the door to their bedroom was closed and there was no noise coming from within.

47 Ms Foo received a telephone call from her husband at around 9.00am to inform her that the deceased was then being taken to hospital by his parents. She went to the Westmead Children's Hospital after work to visit him. She spoke to her brother and sister-in-law and they were what she described as both in shock and very sad about the deceased. She said that they were unsure what was wrong with him.

48 On the evening of 24 March 2006, Ms Foo went to the hospital to see the deceased. When she arrived she spoke to her sister-in-law who told her that her brother had been taken to Parramatta Police Station to be interviewed. She said, "The doctors have said that You Qi has severe bleeding at the back of the head, behind the eyes and more on the left eye and it could cause permanent brain damage". Ms Foo said, "What [sic] the cause?" Her sister-in-law replied, "Due to shaking". Ms Foo replied, "How do you mean shake?" The deceased's mother did not say anything. Ms Foo thought she was crying and so she did not ask her anything further.

49 Ms Foo said that prior to 20 March 2006 the deceased was a happy child. He would smile at her when she played with him and he would respond and always make sounds himself. She said that her brother and sister-in-law were very happily married. The accused is very mild and very softly spoken. She said, "He wouldn't hurt anyone". The accused and his wife shared in the care of the deceased. His mother would normally express her milk in the bedroom during the day and in the bathroom at night. The accused is a very good father who would help to look after the deceased. His parents would take turns in nursing him if he were upset. They were both very patient when they were attempting to pacify him when he was crying. She said that her brother and sister-in-law are both Buddhist and are very dedicated to their religion.

50 Finally, Ms Foo said that she had never seen her brother or sister-in-law shake the deceased. She had only seen them nursing him in their arms and rocking him gently. Moreover, she had only ever seen them pat him gently on his nappies. She had seen them pat him on his back when they were trying to burp him.

Hartanto Hartanto

51 Hartanto Hartanto is Ms Foo's husband. He also gave a statement dated 14 April 2006. He said that he was a self-employed photographer and worked from home. He confirmed that about two months before the deceased was born the accused took Dunyao back to Singapore so that his grandparents could look after him. The accused and his wife wanted to be able to devote all their time to the new baby when he was born. This would have been difficult with a three-year-old child around.

52 The accused was only away in Singapore for a couple of weeks and was home when the deceased was born. The accused and his wife were very happy. The deceased came home from hospital two or three days after he was born. The accused took a couple of weeks off work to help his wife with the new baby. He cooked and prepared things for his wife and generally looked after her so that she could look after the deceased. His wife was very weak after the birth and she stayed in bed most of the day for at least four or five days.

53 For the first month the deceased mostly slept and was very demanding. About a month after he was born his parents took him to Singapore for Chinese New Year. They were away in Singapore for about two to three weeks. When they returned only the deceased came with them. He said that they wanted to look for an apartment of their own because it was a bit crowded at the house in Telopea with everybody there. They wanted to find a place of their own before Dunyao came home. In general terms the deceased seemed to be a bit more demanding than his brother. He appeared to cry more often and seemed more particular about certain things.

54 Hartanto confirmed that about five days before the deceased was admitted to hospital he was immunised. Following that he was crying a lot more for about three days. He was not sleeping very well. Due to the nature of his work, Hartanto sometimes had to work through the night and his office was next to the bedroom where they slept. He could hear the deceased wake during the night and he could hear the deceased's parents wake up. Sometimes the deceased would settle down and go back to sleep for maybe three to four hours but at other times it was worse and he might only go back to sleep for an hour or so.

55 During this time the accused was not at work very much and was mostly at home. Both the accused and his wife were very tired due to lack of sleep. He told them that it was normal for babies to cry from time to time and that they just had to be patient. He said that there were about two days when the deceased was crying a lot and not sleeping very well and his parents took him to a doctor during the daytime. Later that day they were at home talking over dinner as a family and the accused and his wife told him that the doctor was not too worried about the deceased who was probably just unsettled by the immunisation. They were told to take him back to the doctor in a couple of days if he did not improve.

56 On the morning of Monday 20 March 2006 Hartanto got up and was moving around the house. At about 7.15am he turned on the computer in his office but did not hear any noise coming from the bedroom of the accused. At about 8.00am he drove his wife to work at West Ryde and stopped locally to have breakfast. He was there for about 15 to 20 minutes and then drove home. He arrived back at about 8.45am.

57 When he got home the accused was trying to feed a bottle to the deceased in the dining room. The deceased looked like he was refusing to feed. The accused was sitting in a chair with the deceased cradled in his arm. He was supporting the deceased's back with his arm and the deceased's head was resting on his upper arm and chest. The accused was in his sleeping clothes. He did not remember what the deceased was wearing but he was not wrapped up in a blanket.

58 The accused said to him, "The baby is not feeding again". He said, "You better bring You Qi to the hospital". The accused replied, "OK". Just about the same time that this was happening, the accused's wife came downstairs dressed in her pyjamas. She was washing up some bottles and things she used to express her milk. Both she and the accused were very worried and she was crying. From the accused's face he could tell that the accused was upset. In his estimation, both the accused and his wife were more upset than he had seen them in the past. This was particularly so in the last few minutes before they went to hospital that morning.

59 The accused passed the baby to his wife and went upstairs to pack some things. Hartanto stayed with the deceased's mother. The deceased was crying and his mother was unable to settle him. This was all happening in the space of a few minutes and Hartanto said that he was upset and worried about what was going on as well. The accused and his wife left the premises with the deceased destined for the hospital. A couple of hours later the accused rang him at home and told him that they would be at hospital for a few hours. He was not told anything of the deceased's condition. That night he went to the hospital with his wife and saw the deceased. It was at that time that he learnt that the deceased was very sick.

60 Hartanto was informed that the deceased was being treated for a range of problems, including having been shaken vigorously. He said that in his observations of how the accused and his wife had looked after the deceased, he had never seen them mistreat him in any way. Neither the accused nor his wife had said anything to him since the deceased went into hospital that suggested that they knew how he was injured. He said that he had no knowledge of his own about how the deceased had come to sustain his injuries.

Boong Chong Neo

61 The accused's uncle Boong Chong Neo gave evidence that the accused visited him on Sunday 19 March 2006 at his premises at Chester Hill. This was a regular occurrence. The accused arrived at about 9.00am and left at about 12.30 or 1.00pm. He came alone. The accused is his sister's son. She informed him on the afternoon of the following day that the deceased had been taken to hospital.

62 Although the accused would normally stay for lunch, on the Sunday in question he informed Mr Neo that the deceased was ill and that he had to leave early to take him to a doctor. Mr Neo spoke in praiseworthy terms about all aspects of the accused's character. He regarded him as honest, with no bad habits and said implicitly that he was a good father.

Matthias Pfeiffer

63 Matthias Pfeiffer was called in the Crown case. He worked with the accused in a computer consulting engineering company. They worked closely together. He said that the accused was trustworthy and never came into conflict with customers. Their work was very stressful and the accused was good at his job. The accused continues to be employed by this company. Mr Pfeiffer spends between 80 per cent and 90 per cent of his time at work with the accused. They travel interstate to the premises of clients. Mr Pfeiffer visited the accused at his home on a few occasions for a meal. He said, "I have never seen Jeong Ming aggressive or lose his temper in professional life or social life". He also said, "Jeong Ming has my complete trust". The accused had never confided in Mr Pfeiffer about any inappropriate handling by him of the deceased. Mr Pfeiffer said that he would be very surprised to learn that the accused might have done that.

Witnesses at the hospital

Allyson Jeans

64 Allyson Jeans was employed at the Westmead Children's Hospital in 2006. She provided a statement dated 30 May 2006 for use in this trial.

65 The deceased came under her care on Tuesday 21 March 2006, the second day of his admission to the hospital. She had a conversation with the accused at the hospital on Wednesday 22 March 2006. He was at the ICU with his wife and she sat next to him and asked what was wrong and whether he had any questions. Although she said that she did not remember his exact words, the accused asked her if he could have hurt the deceased or done "this" to him when he was crying. Whilst the accused was asking her these questions he was patting his shoulder as if he were holding the child. She said, "This was to show me how he had patted You Qi". This was demonstrated in court during her evidence in chief. The following questions and answers related to that demonstration:

"Q. Are you able to show his Honour, and stand up or however this is comfortable for you, to the best of your recollection what it was that Mr Foo did? What actions he actually did in relation to that point in your statement, paragraph 7?
A. He was sitting down next to the bedside and basically had his hands cupped and was just patting like this and was concerned that possibly why You Qi was so sick was because he was trying to console him prior to him getting ill.

Q. Just stop there. I'm seeking from you most of all a physical demonstration that his Honour can understand what it is that was shown. As I observed you, and I can't see all of you, you appeared with your right hand in front of you with your palm facing towards your chest with a palm at just below shoulder height and quite gently pat yourself on the chest?
A. As if he was consoling a baby, yep. As if he was consoling the baby.

Q. That was the action that was demonstrated to you at that time?
A. Correct.

66 Ms Jeans said that she tried to console the accused "and told him that you would have to shake a baby pretty hard to do damage to the baby's brain". The accused then asked her about all the numbers on the monitor that displayed such things as respiratory rate, heart rate, blood pressure and oxygen saturation and carbon dioxide measurement. To her observation, both the accused and his wife "appeared visibly upset and not out of the norm from [her] experience in working in the PICU". She said, "they were equally distressed about You Qi's appearance".

67 Later that afternoon Ms Jeans saw Michelle Jubelin in the ward at the PICU. She told her of the conversation that she had had with the accused. She said she did this, as she "was concerned for his welfare". She said "both the parents pretty much sat next to the bedside for the duration of the two days of me looking after You Qi". She described them as "understandably upset".

Michelle Jubelin

68 Michelle Jubelin gave a statement dated 28 March 2006. On 24 March 2006 she took part in a meeting with the accused and his wife and Dr Wilkins during which it was explained that the deceased had been found to have sustained subdural and retinal haemorrhages. She said that the deceased's mother appeared very composed and asked questions about his (then) long-term prognosis. The accused started to slump over and put his hand on his forehead. He appeared to be upset.

69 Miss Jubelin said that she later explained her role. When all the doctors had left the room she asked the accused and his wife, "Were you surprised by what Dr Wilkins has just explained to you about You's injuries?" She said that at this point the accused became quite teary and said, "No. I picked You up from the bed and I didn't support his head and I patted him very hard". As he did so the accused demonstrated picking up a baby, putting it over his shoulder and patting it with his hands. Ms Jubelin said that he placed his hands one under the other, just above chest height, with his arms out horizontal and parallel to one another and moved them back and forth at the same time. The accused said, "I may have hit him too hard. The baby started to cry louder and when I went to give baby to [my wife] when we noticed the baby's breathing was funny".

70 Ms Jubelin said that she did not ask any further questions about how it happened. She said that she went on to explain what he needed to do about liaising with CPU and DOCS. She said that the accused was visibly upset and said, "I don't care what punishment I get, I deserve it". There was then a short silence and the accused's wife said, "Would you mind leaving us alone at this stage". Ms Jubelin then left the room.

71 About ten minutes later she was walking past the interview room when the accused wife came out and asked if they could ask some questions. She went back into the room and sat down with them. She was asked what would now happen. Ms Jubelin explained that it was early days but that she would be making a report to DOCS and that someone would want to come and talk to them as well. The accused then said, "Will I be arrested?" She replied, "I'm not sure at this stage what the process will be". The accused asked, "What is the worst scenario?" She replied, "If You died, you could be charged as a result". The accused said, "Because I caused injury, will I have to pay to the medical costs of You whilst he is in hospital?" A few days later the accused's wife said to her, "I don't understand, we are not a violent family".

72 Ms Jubelin demonstrated in the witness box the movements shown to her by the accused that are described above. She gave the following evidence to explain what she saw:

"Q. Now you're doing that in a fairly gentle fashion?
A. Right.

Q. Is that what was done at the time?
A. The movements I was doing was pretty much what the father was doing.

73 Ms Jubelin went on to give the following evidence:

"Q. The long and the short of it is: you accept that he demonstrated picking the child up without the head being supported, you can't remember how he did it; is that right?
A. That's correct.

74 Ms Jubelin was asked specifically about the issue of whether the deceased had been shaken. She gave the following evidence about that:

"Q. Did you think that the accused was telling you that he shook the baby?
A. I formed the interpretation that the accused was telling me that he may have contributed to the medical information the doctor had just given him.

Q. That's clear enough from your statement, but focusing on the word "shake or "shook". Did you interpret his information both visual and oral as conveyed to you as him shaking the baby?
A. By his movements and his verbal discussion with me I got the impression that this baby had been shaken in some way.

75 A little later she gave this evidence about a note of her conversation that she recorded at the time:

"Q. You said in part that the accused explained that You was crying in his bed, he picked him up, placed him over his shoulder stating that he wasn't supporting his head and began to shake him while he was over his shoulder?
A. That's correct.

Q. He never used the word "shake", did he?
A. Not to my recollection today.

Q. It's not in your statement, is it?
A. No, it's not.

76 Ms Jubelin was re-examined on her use of the word "shake" in the following passages:

"Q. Nevertheless, when you completed the note that you completed in the hospital record you used the word "shake"; is that correct?
A. I did.

Q. Can you read out the whole of the passage that you recorded concerning the use of the word "shake"?
A. So you want me to read out the whole?

and begun to shake him while he was over his shoulder

Suzanne Foley

77 Suzanne Foley was a social worker at the Westmead Children's Hospital in 2006. She was present with Dr Norrie when the accused gave the demonstration of how he picked up the deceased from the bassinette on Monday 20 March 2006, to which reference is made elsewhere in these reasons. Her description of what she observed is in accordance with all other versions of the same event.

The expert medical evidence

Dr Wong

78 A paediatric radiologist, Dr Wong, called in the Crown case, reported that chest x-rays of the deceased on 20 March 2006 demonstrated a healed fracture involving the fourth and fifth ribs on the right. These fractures would have occurred at least three weeks prior to the date of the x-ray as they had almost completely healed. Plain x-rays of the humeri and right tibia performed on 7 April 2006 demonstrated periosteal reaction along the shaft of the bones consistent with posttraumatic remodelling reaction. These injuries appear to have occurred a few days before 23 March 2006, but could have occurred up to seven days earlier. A CT head examination on 25 March 2006 demonstrated a non-displaced skull fracture of the parietal bone and bilateral haematomas, larger on the left side. There were also bilateral subdural haematomas in the posterior fossa also greater than two weeks of age. There was fresh blood at the interhemispheric fissure between the two cerebrums of less than ten days of age.

79 Dr Wong was of the opinion that the presence of new and old blood in the subdural space of the brain and the shearing injuries to the brain were most likely to have occurred with shaking of the deceased. The healed or healing rib fractures that he observed and evidence of acute bony injuries without fractures of the humeri and right tibia were most likely in his opinion related to compression of the chest wall during handling and rough handling of the limbs. This was all consistent with non-accidental injuries of the head and skeletal system that occurred on different occasions.

80 Dr Wong expanded upon his report in oral evidence. He spoke of the healing fractures of the fourth and fifth ribs on the right. He said that they had occurred at least three weeks prior to the first x-ray. He also said that there was no way of aging the separation of skull sutures in an 11-week-old infant. Accordingly, there was no way of knowing how long that condition (being the parietal fracture of the deceased's skull) had persisted. He said, "the degree of separation of the skull sutures depend[ed] on the size of the expanding abnormality in the brain. It [did not] relate to how long the abnormality ha[d] been there".

81 Dr Wong was asked questions about the degree of force that might be required to lead to a fracture of the humerus of a child of the age of the deceased. His evidence was as follows:

"Q. And what sort of force would you expect would create an artefact such as we've seen here?
A. Which?

Q. In relation to the healing on the humerus?
A. As far as I could tell there were no fractures. The abnormality was picked up on a bone scan and we do know that bone scans are more sensitive in picking up a mild degree of trauma or early fractures. So the fractures were not shown on plain x-rays, so I think the degree of force that was required to cause those changes on the left seven and eight ribs would be less than the force that is required to cause a fracture.

Q. And what sort of force would you expect would be necessary to create the seventh and eighth rib injury?
A. Again, it's a very difficult question to answer, but any form of squeezing or rough handling of the ribs would cause that degree of reaction. Again, less force is required as compared to a fracture.

*****

Q. Right, if we can go back to the left arm bone. On a mild, moderate and severe scale, what level of force would you expect had been necessary to create the injury that you saw to the long bone?
A. Again, moderate force.

Q. Moderate. And what type of force are we speaking of here for this injury?
A. Any form of rough handling would cause that degree of injury.

Q. And would that include holding the child by its arms?
A. Yes.

Q. And moving it unsupported?
A. Yes.

82 He also said that a moderate degree of force would have been required to cause an injury apparently detected to the deceased's right tibia. He said:

". . . the injury of the right tibia would be caused by a similar situation as what you described with the right humerus. It's basically holding onto the tibia or the leg or the lower leg, and maybe lifting the child without support and there may be a degree of twisting injury as well in that situation."

83 Dr Wong agreed that the deceased's injuries to his tibia and his humerus could have been caused as many as 10 days prior to 23 March 2006.

84 The deceased was diagnosed as having sustained a shearing injury to the brain that caused loss of consciousness and cardiac arrest. Several medical specialists expressed the opinion that his death was as the result of that injury. Dr Wong shared that view. When asked to describe what such an injury involved, he gave the following explanation:

"Q. Can you describe to his Honour the nature of those injuries, please?
A. Okay. It was not just the corpus callosum, but also the deep white matter of the brain. The external capsules and the occipital lobes. These are just various parts of the brain, and the injuries are known as "shearing injuries", and what it is, is the effect from the acceleration and deceleration forces on the head. Basically the brain consists of grey matter and white matter. The grey matter is where the neurons or the brain cells are, and white matter is the nerve fibres. So there is a junction between the grey matter and the white matter in the brain, and it is this particular location that shearing injuries occur because there is a slight difference in density between white and grey matter, and when you have an acceleration and deceleration injury you get shearing forces at the border between grey and white matter.

Q. So there is in effect a separation of the matter; is that correct?
A. Not a true separation, but more of a shearing injury.

Q. It's the word shearing that I'm trying to get some satisfactory definition or understanding of, doctor. In relation to the two types of matter, the grey and the white, you told us they are slightly different densities?
A. That's right.

85 He described what he considered to be the mechanism of the cause of these injuries:

86 Having regard to the description of what occurred that the accused had given, it was important to elicit medical opinion about the relationship, if any, between what the accused said he had done and the injuries sustained to the deceased's brain. Dr Wong gave his evidence on this aspect as follows:

"Q. If you pick up a child from a position where it is lying down on its back - in each case here, doctor, we are speaking of an 11 week old child - if you pick up such a child from the back quickly and raise it to the shoulder of an adult without support of the head, is such an action a sufficient level of force to create an injury such as you saw in this child?
A. If you were to lift a child, let's say from the ground at this age, and put it on to your shoulder without supporting the head, that degree of force would not be sufficient to cause shearing injuries.

Q. Because in part, that action doesn't have sufficient of an acceleration and deceleration pressure; does it?
A. That is correct.

Q. So that you can't contemplate any circumstance in which a child that's lying down on a surface with its back down, say approximately the height of this bar table here?
A. Yes.

87 Finally Dr Wong gave an opinion about the age of the haematomas. He said that the subdural haematomas were greater than two weeks of age and that they "may relate to one of the other two injuries [but that he could not] be more specific". That evidence was in the following terms:

"Q. I am not sure if I asked you this. It is not possible to age the brain injuries, is it?
A. The shearing injuries?

Q. Yes?
A. No.

Q. You've expressed a view that the various injuries seen to the head and the skeletal system occurred on different occasions. Are you able to say on how many occasions?
A. Oh, I would need to refer back to my report to try and answer that question because, first of all, the fractures of the right fourth and fifth ribs is at least three weeks prior to 20 March, so that is one incident.

The injury involving both humeri and the right tibia, we've estimated - or I've estimated to be at least three to four days prior to 23 March and that would be another incident.

And then the age of the fresh blood at the interhemispheric fissure is less than 10 days, so, again it's not very accurate in terms of ageing, not very specific anyway. So it may be partly related to one of the other two injuries or it may be a separate injury, I can't say. But, again, the subdural haematomas were greater than two weeks of age. Again, it may relate to one of the other two injuries, I can't be more specific.

Dr Rowe

88 An ophthalmologist, Dr Rowe, called in the Crown case, reported that the deceased suffered non-accidental injury causing retinal haemorrhages consistent with his having been shaken. He said that retinal haemorrhages are found in a small percentage of newborn infants although these disappear rapidly with very few exceptions. He was of the opinion that the deceased's eye findings were consistent with non-accidental injury, with the possibility that the injuries had occurred during CPR or persisted from birth or related to emetological bleeding disorders being remote. He also gave oral evidence in the proceedings that was consistent with his report.

89 Dr Rowe was cross-examined about whether or not he was able to estimate when the haemorrhaging that he observed and photographed might have occurred. He said that retinal haemorrhages like those shown would have occurred roughly within three weeks of the pictures being taken. He said that there was a slight variation in rates of resolution of haemorrhages, although typically superficial haemorrhaging, which was what was seen in pictures of the deceased's retinas, tended to resolve relatively quickly within three to four weeks of onset. The doctor said that, in his experience, what he observed was one of the more severe degrees of retinal haemorrhaging that he had examined. He agreed that if there were a clinically significant vitamin K deficiency then there would be an increased risk of bleeding generally.

90 Dr Rowe was asked about the degree of force required to produce retinal haemorrhages. He gave the following evidence on this topic:

"Q. So, too, there is significant debate about the degree of force required to exhibit retinal haemorrhages; is that right?
A. I think it is not understood how much force, or how little force is required to produce bleeding at the back of the eye in relation to shaking, non-accidental injury.

Dr Munns

91 Dr Munns is a specialist in paediatric endocrinology. He prepared a report that was tendered in the Crown case. He also gave oral evidence at the trial. He expressed the opinion that the deceased's bone injuries were not explained by vitamin D deficiency or an underlying bone fragility disorder. Even though the deficiency was relatively severe, the effects of that deficiency on the child were mild. He was of the opinion that the deceased had a skull fracture but that the vitamin D deficiency was not leading to a bone defect. He "could find no evidence to suggest that the bones were weaker so as to explain the skull fracture". He said that that would be the same in relation to the fracture of the left arm and also in relation to the apparent or possible rib fractures. He agreed that the deceased also had a vitamin K deficiency but said, "the role of vitamin K in bone strength is yet to be established".

92 Dr Munns did not accept that there were alternative explanations for the cause of bony injuries sustained by the deceased such as the effects of immunisation or air travel to and from Singapore, being head-butted by his older brother or as a side effect of CPR when treated in the emergency department of the hospital immediately following his admission.

Dr Webster

93 A paediatric neurologist, Dr Webster, called in the Crown case, examined the deceased on 24 March 2006 in the Paediatric Intensive Care Unit of the Westmead Children's Hospital. He reported that on that occasion the deceased showed minimal response to stimuli, but had some spontaneous respiration with a full pulsatile fontanelle. He observed bilateral retinal haemorrhages. Neurological signs were very abnormal. An MRI from the preceding day showed evidence of diffuse damage to the white matter of the brain. The distribution of these images was considered to be atypical for changes that might be seen after a prolonged hypoxic event or cerebral infarction related to low blood pressure. There were chronic, as well as subacute, components noted in the subdural fluid collections shown on the MRI. It became clear to Dr Webster that the deceased had suffered a severe and irreversible neurological injury. He was of the opinion that the evidence was consistent with non-accidental traumatic head injury resulting in severe brain damage.

94 Dr Webster also gave oral evidence with respect to the assessment or estimation of the timing and aging of the brain injuries suffered by the deceased. With respect to the deceased's severe and irreversible neurological injury, he agreed that the timing of that injury was approximate to his sudden decline into unconsciousness and subsequent presentation to the hospital. He was asked whether or not he was able to put a time limit on that process. He said, "No, I don't think I can accurately". He went on to describe the process as follows:

"A. I think the unconsciousness resulted from, perhaps not so much from the haemorrhage, but the damage to the brain underlying it. So I think the unconsciousness was a reflection of the brain damage. What I can't say is precisely at what time - the most the severe injury that caused that happened. In other words, whether there were preceding injuries, but it seemed like the most likely thing was that he had a significant injury within the period of time before him coming in, and there was some suggestion from the history provided from his parents that in the week preceding his admission he may have had something abnormal about his brain function, because he was described as being irritable and sleeping poorly."

95 He agreed that prior to the injury that precipitated unconsciousness the deceased had sustained at least two subdural haemorrhages. He said that there was evidence, on the basis of subdural haemorrhages, that they were of different ages, suggesting that they did not occur at the same time. There was no history of a loss of consciousness associated with earlier injury. He agreed that if there had been a severe neurological injury occasioning a subdural haemorrhage, one would expect that the deceased would have shown a lack of consciousness, or at least some descent of neurological functioning. That would be expected to manifest itself as sleepiness, sometimes irritability and sometimes vomiting. The factor that determines what happens is the severity of the injury that causes it.

96 The following evidence was led from the doctor:

"Q. So that there is some indication of symptoms demonstrated by the baby, consistent with an earlier injury in the few days leading up to its presentation?
A. On the basis of history given to me, yes.

Q. This is culminated by the baby suddenly lapsing into unconsciousness on the morning of 20 March?
A. Yes.

Q. And that sudden decline into unconsciousness and very shortly afterwards being presented to the hospital in moribund condition is an indication of a significant neurological injury is it not?
A. Yes.

97 This evidence needs to be compared with some later evidence given by Dr Webster in cross-examination. That evidence appears at T 70-71 and is as follows:

"Q. And as I understand something that you said in your evidence-in-chief, something could well have happened to the baby that caused a new injury that caused it to lapse into unconsciousness prior to his admission to hospital?
A. Yes.

Q. But maybe not; maybe the last trauma could have been even before the baby went to see the doctor on the Sunday; is that right?
A. Yeah, and I think that's true.

Q. If the baby did have brain damage like was ultimately seen on MRI--
A. Yes.

Q. --and chronic subdural haemorrhages and retinal haemorrhages--
A. Yes.

Q. --already on the morning of 20 March, before the baby came into hospital--
A. So, that - okay, yes, yes.

Q. --which I think you'd accept to be the case; probably this baby already had?
A. Yes, yep.
Q. I will withdraw the question. Let's focus on 8am on 20 March.
A. Yes.

Q. An hour or so before the baby's admission--
A. Yep.

Q. --at a time shortly before the baby lapsed into unconsciousness?
A. Yes.

Q. It could well be the case that that baby had quite a number of subdural haemorrhages already at that time?
A. Yeah, I think that's possible.

Q. Well, likely. I mean, some of these are chronic--
A. Yes.

Q. --subdural haemorrhages?
A. Yes.

Q. Could probably have been there more than two weeks, right?
A. Yeah, I mean, I think there is certainly a possibility that there were subdural haemorrhages at that time.

Q. And the brain injury--
A. Yes.

Q. --could well have been there even before the baby went to the doctor on the Sunday?
A. Yes, I think that's possible.

Q. If on that morning, the Monday morning, at about 8am, if the baby had been lifted quickly without its head being supported--
A. Yes.

Q. --that could have triggered a cascade of events to lead to rapid onset of unconsciousness, right?
A. Yes, so the point you're making is that if you already have an injured brain and then you have some minor trauma on top of things that that could then lead to a catastrophic deterioration?

98 He was also asked about vitamin deficiencies. He agreed that vitamin K deficiency does not predispose a baby to brain injury but if the baby's brain were injured then such a deficiency could lead to a greater than normal amount of bleeding. He thought it was "highly unlikely" in this case that all of the bone damage and haematomas seen in the deceased could have been sourced from vitamin deficiencies.

Professor Howman-Giles

99 Professor Robert Howman-Giles was called in the Crown case and gave evidence based upon his specialty as a physician in nuclear medicine. He expressed the opinion that the rib fractures found on the deceased would have occurred at the same time. He said that these types of fractures in a child are usually from non-accidental injury and that it is very rare for this type of fracture in this position to occur from any other cause. He said that he had never seen rib fractures of this sort "other than from a non-accidental cause". He agreed that such fractures "could be occasioned by the child being struck abdominally by an adult hand in a fashion that lacked support for the rear". He also said the "right tibial abnormality was very abnormal on the bone scan". Moreover, bone scanning of the skull in an infant such as the deceased was unsatisfactory because the skull was predominantly made up of cartilage so that fractures in the skull in a three-month-old child are usually very poorly reactive. Working backwards from the whole body scan performed on 31 March 2006, he could not be more precise than to say that the deceased's bony injuries had been occasioned within six to eight weeks, but more than 24 to 48 hours, of that date. In relation to the rib fractures he said, "what appears to be a fracture on the x-ray and a fairly normal bone scan. . . would suggest that they are older fractures".

100 The doctor's attention was also directed to the mechanism of picking up the deceased described by the accused. He said this:

Dr Norrie

101 Dr Norrie worked at the Child Protection Unit at the Westmead Children's Hospital. She provided a statement dated 1 July 2006 that was tendered in the Crown case. She is a forensic physician. Dr Norrie was present when the accused demonstrated how he had picked up the child very quickly on the morning of the child's admission to hospital. Her description of this demonstration was in general accordance with all other descriptions of it during the proceedings. She gave evidence that "even though . . . the head wasn't supported, so it did have a chance to flick back and forward once, that wouldn't be enough to cause the injuries that [the deceased] had". Nor could it in any way have accounted for the skull fracture. Dr Norrie gave her opinion of the type of activity that would be necessary to cause the type of head injuries sustained by the deceased:

"Q. Are you able to say what sort of activity would be sufficient to create the head injuries?
A. It's generally held that you need at least 30 seconds of - of to-and-fro movement of the head so--

Q. So that is an acceleration/deceleration injury?
A. Yes.

Q. With the head free?
A. Where the head's free and the baby's chin will touch the chest often and then flick right back. So you need a lot of acceleration, deceleration and a lot of rotation of the actual brain inside the skull.

102 The Crown quite properly elicited from Dr Norrie that there were no signs of otherwise commonly occurring shaken baby psychosocial factors in the deceased's household such as drug or alcohol abuse, mental illness or history of domestic violence.

103 Dr Norrie said that the major injury to the deceased was within minutes to an hour of development of symptoms rather than days. In this respect she said that she was referring to the final internal head injury or bleed. That was the injury that caused the deceased to go into a cardiac arrest. She said that in a small infant of this sort there is likely to be a quite limited time span between the infliction of injury and the unconsciousness. It will ultimately depend upon the severity of the injury but if the injury is ultimately going to result in the heart and the breathing stopping, then usually the development of symptoms is quite quick. She agreed with the proposition that this was a severe case where the unconsciousness was almost immediately consequential upon the infliction of the injury.

168 The accused did not give evidence. No inference unfavourable to the accused can arise in those circumstances and I have notionally directed myself that it is a matter that should have no influence upon my deliberations. Moreover, it has not had any influence upon my decision.

169 The only other potential witnesses to any events in the Telopea premises on the morning of 20 March 2006 are the accused's wife, his sister and his brother-in-law. The accused's wife was not called as a witness in the Crown case. The accused expressly disavowed the availability of any adverse inference that might have been suggested by a failure of the Crown to call, or to attempt to call, her in its case. No evidence was led that directly or indirectly assisted or permitted me to characterise the absence from the witness box of the accused's wife in any way favourably or unfavourably to either the Crown or the accused. I have proceeded therefore to treat that absence as a wholly neutral circumstance. Such an approach would appear to conform to the following submission made on behalf of the accused by his counsel:

Jones v Dunkel

170 I have in any event also proceeded to direct myself, in respect of the election both by the Crown and by the accused not to call the accused's wife, in accordance with the statements of principle to be found in the joint judgment of Gaudron and Hayne JJ in Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [5] - [6] as follows:

"[5] As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi . . . As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.

171 The only material that touches upon the involvement of the accused's wife in the events at the Telopea premises at any relevant time, and which can be attributed in some way to her, is to be found in the statement of Dr Norrie. She said that the deceased's mother denied the possibility of inflicted head injury. That cryptic reference did not adequately address the question of whether or not it was a statement about her own involvement or a more general denial of the infliction of injury by anyone at all. It is not a piece of evidence that is particularly helpful or instructive in any event.

172 The statement of the accused's sister does not cast any light on the events of the morning of 20 March 2006. She was only able to say that when she left for work the bedroom door where the accused and his family slept was closed. She neither saw nor heard anything.

173 The accused's brother-in-law gave a version of the events of that morning that arguably does not fit with the version given by the accused. The burden of his evidence is that when he returned at about 8.45am from taking his wife to work, the accused was trying to feed the deceased in the dining room as he sat in a chair with the deceased in his arms. The deceased looked like he was refusing to feed. On his version, he told the accused that he should take the child to hospital, but only apparently in response to having been informed by the accused that the deceased was not feeding again. The accused's wife then came downstairs. He said that they were both very worried and she was crying. The accused was upset. The accused and his wife were more upset than he had seen them in the past and particularly so in the last few minutes before they left for hospital. The accused is said to have passed the deceased to his wife and gone upstairs. This is all said to have happened in the space of a few minutes.

174 This version is inconsistent with the version given by the accused, to the extent at least that the accused makes no mention of these events. It is not inconsistent to the extent that what Hartanto said occurred could have happened after the events described by the accused. The statement is unsatisfactory to the extent that it lacks detail about the condition of the deceased. It is inconsistent with the assumption that the description of the deceased having gone soft corresponded to some condition amounting to unconsciousness or cardiac arrest; the descriptions of attempts to feed the deceased do not sit comfortably with the notion of a child in either a state of unconsciousness or cardiac arrest. An assessment of the accuracy or otherwise of Hartanto's recollections was not assisted by an opportunity to observe him as a witness in the courtroom.

175 An acceptance of Dr Moran's primary view about the timing of the critical insult to the deceased and the onset of unconsciousness, and the rejection of the accused's version that must accompany it, does not lead automatically or even persuasively to a conclusion that is necessarily unfavourable to the accused. As a matter of logically available inference, rejection of the accused's version is entirely consistent with the acceptance of Dr Moran's view if the accused's version is replaced with another explanation involving trauma and coincidental unconsciousness. The involvement of the accused in such a version is not a given. The existence of such an explanation in the circumstances of this case is a reasonably available hypothetical alternative.

176 The description given by Hartanto that the accused and his wife were upset and perhaps more upset than he had seen them in the past is presumably accurate. His statement, however, does not assist in isolating or identifying the time or the event that triggered their reaction. The accused's wife, on this version, would appear to have been already upset before she came downstairs to the dining room and the scene described by Hartanto. He did not describe a scene as she arrived that only suggested shock or alarm at what she then saw. So much leaves open the possibility that whatever event had caused the parents to be so upset had already occurred, but no insight is provided into where or when it may have occurred. Somewhat curiously, the accused is said to have passed the deceased to his wife and gone upstairs but Hartanto gives no clue to the condition of the deceased at that time.

177 The issue becomes even less clear when one considers the alternative medical opinion about the temporal relationship between a shearing injury to the brain and the onset of unconsciousness. The outer limit of this opinion is that expressed by Dr Donald who suggested that the shearing injury could have preceded the deceased lapsing into unconsciousness by as much as four hours. He also described the period as "somewhere in the vicinity of a couple to several hours". This was based upon his opinion that the loss of consciousness was the result of secondary effects such as hypoxia and ischaemia, which would have followed from the injury, rather than from an immediate shutdown coinciding with the infliction of that injury. He placed emphasis upon the fact that the deceased suffered no injury to the midbrain or brainstem, which would have been more likely to lead to immediate unconsciousness if it had occurred. His view was that it was therefore unreasonable to conclude that an episode of head injury must have occurred immediately prior to the deceased's collapse at home.

178 The significant concession made by Dr Moran is critical in this context. He accepted – indeed, he described it as the "important point" – that it was possible to have diffuse axonal injury causing unconsciousness but from which the victim could recover "some form of consciousness" before once again lapsing into unconsciousness. This description appears comfortably to fit with the observations of Hartanto who observed no violent event but observed the deceased and his wife to be significantly upset with a child who was arguably in some form of consciousness, even if not complete. The event that caused this to occur could quite easily have occurred in the period of Hartanto's absence when only the accused and his wife were present in the house. This is well within both the time period promoted by Dr Donald and the analysis conceded by Dr Moran.

179 Other medical specialists also gave opinions that would accommodate this hypothesis. Dr Norrie spoke of minutes or up to an hour. Dr Wilkins said "minutes rather than hours" and agreed that he could not exclude a period of up to two hours. During any such period the deceased was in the Telopea premises with both the accused and the deceased’s mother.

180 It is of course necessary to look at all of the circumstances in a case such as the present where no single piece of evidence of itself inculpates the accused. I have had regard to the passage in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 where Dixon J said:

"If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed".

181 To the extent, therefore, that the Crown relies upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that can be drawn from the circumstances. It is therefore important to outline the circumstances relied upon by the Crown to infer the guilt of the accused because not only must these circumstances be capable of giving rise to the inference of guilt but must be the only inference available to be drawn. It is trite to observe that the Crown must establish the guilt of the accused beyond reasonable doubt and such a doubt will remain if any other inference is reasonably open on the evidence: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579. I take into account that intermediate facts, if any, that constitute links in the chain of reasoning towards an inference of guilt must also be found beyond reasonable doubt before the ultimate inference can be drawn. Moreover, in the case of evidence that in effect consists of strands in a cable from which guilt is sought to be inferred, as opposed to links in a chain, no fact or facts being by itself or themselves necessary to the ultimate inference or conclusion, I should not look at the evidence as to each fact or circumstance separately, but I should consider the accumulation of the evidence. I may in such a case draw an inference of guilt from a combination of facts, none of which alone may be capable of supporting that inference: Shepherd v The Queen (supra) at 580. The ultimate inference of guilt, however, must exclude any other reasonable explanation or explanations than that of guilt.

182 As the Crown quite properly emphasised, this is a circumstantial case and it is necessary to look at all of the circumstances. First, the accused was a relatively inexperienced father living in cramped and difficult circumstances, occupying a bedroom with his wife and the deceased who slept on a mattress on the floor of their room. The house they occupied was that of their in-laws and presumably that fact added to the pressures upon the accused and his wife. The deceased was a fussy child from birth and probably suffered additionally from a mild reaction to his recent vaccination that left him feeding indifferently and sleeping fitfully. The night before his admission to hospital, the deceased was awake on an hourly basis and the accused would in those circumstances have been tired and harried.

183 The accused was also under pressure to support the family. Chinese custom was said to impose a particularly onerous obligation upon young fathers for the care and support of wives and newborn babies. Documentation supporting a claim for work done for his employer in the time around the date of the deceased's admission to hospital showed that the accused had worked full days with little time for rest. His work imposed high pressures and stresses upon the accused and these were not relieved at the time leading up to the collapse of his child. There was no relevant family support for the accused and his wife in Australia and the fact that Dunyao had been sent to Singapore was said to be a recognition of the stresses that accompanied the early weeks following the birth of a new child rather than something that would have led to a significant relief of pressure upon the accused and his wife in the circumstances. The parents had, in effect, been left alone to focus on the care of the deceased themselves.

184 Secondly, the accused made statements to workers at the hospital that amounted to what the Crown described as "admissions". The Crown described these as "crucial admissions" that were made at the hospital at the time when the deceased was still being intensively cared for and when his medical condition and outcome were still unknown or doubtful. These statements included the statements to Ms Jubelin that he "may have hit him too hard" and "I don't care what punishment I get, I deserve it", and questions about responsibilities for medical costs for injuries that he may have caused. The accused also asked Ms Jubelin about whether or not he would be charged. The Crown's submission was that "we have now moved on to a situation where one of those people [i.e. the accused and his wife] is openly acknowledging mistreating the child and speaking about [his] sense of guilt in relation to the child and speaking at that point in time while the child is still critically ill in hospital and subject to intensive medical treatment that he doesn't care what punishment he gets, that he deserves it".

185 In his records of interview the accused admitted to hitting the deceased on the stomach and the buttocks and the suspected, but not proven, presence of blood in the child's stools was emphasised as an indicator of the degree of force applied. The accused agreed that such force would be unreasonable in some circumstances but insisted that what he did in fact was acceptable. The accused agreed that he had been awake all night and agreed that he could have been angry ("there’s a bit of anger in there") but said that he was also anxious. He agreed that he was obviously stressed. He denied deliberately hurting the deceased. He agreed that he had become quite frustrated. It was submitted that the reference by the accused to the deceased as "a naughty boy" at the time he struck his stomach was "a very important piece of evidence about the state of this accused's mind and the stresses and pressures that he [was] under". The Crown submitted that any suggestion that the accused's statements were some form of "wondering aloud or querying" or "matters of that sort" were "a nonsense". The accused was said to be a sophisticated man whose statements should not be merely discounted as "some sort of musing".

186 Thirdly, the Crown points to the fractured skull and the prospect that the likelihood is that the fracture was occasioned at the same time as the shearing injury. Dr Moran's assessment of fifty times the amount of force flowing from an impact injury, as opposed to any other form of injury such as shaking alone, tended strongly to support a temporal connection between the two injuries. It was submitted by the Crown that the overwhelming preponderance of evidence linked the two. In this respect it should however be observed that the deceased's prior injuries, including old fractures and subdural haematomas, were not relied upon as being in any way related to the cause of death and were not suggested to be circumstantially related to any set of circumstances inculpating the accused. They were undoubtedly evidence of physical injury, probably if not certainly non-accidental, but connecting them in any way to the accused was not attempted and certainly not established.

187 Referring to these and other similar circumstances, the Crown submitted that what emerged was a clear admission from the accused to the infliction of an amount of force, that did not lead to death, which amounted to a form of behaviour by a person acting out of frustration inflicted upon a child in an extraordinarily inappropriate way. The Crown submitted that what emerged was an "extraordinarily strong circumstance pointing towards the perpetrator of the greater injuries, even if they are unadmitted". In other words, to the extent that the accused admitted to the commission of the type of acts and the degrees of force that he in fact agreed to, there was an inference in the circumstances that pointed to him as the perpetrator of the greater physical injuries that caused the death of the deceased. That was described as "the fulcrum point in the Crown case". The Crown submitted "that at all points in time it is the accused who has acknowledged his care of the child and his mistreatment of the child. . . even if not to a level that would account for the injuries" that ultimately led to his death.

188 The Crown conceded that in assessing the evidence upon which it relied that it was "quite plain" that one could "take out of the picture everybody except the mother and the father".

189 The accused's response to these matters was simple. This was said to be a case where there are considerable uncertainties about all of the necessary proofs that are required to convict the accused of either murder or manslaughter. There are uncertainties about what was the exact act that caused the injuries that led to the death of the deceased. There are uncertainties about what injuries were contemporaneous with the injuries that caused the death of the deceased. There are uncertainties about when the acts were occasioned that caused the death of the deceased and there is uncertainty about whose acts caused the death of the deceased.

190 There is little doubt that there are uncertainties about what was the exact act that caused the injuries that led to the death of the deceased. I am satisfied beyond reasonable doubt that the deceased died of a shearing injury to his brain, caused by what all medical experts who expressed an opinion upon it described as an acceleration/deceleration injury, at the site of the junction between the grey and white matter of the brain. I am also satisfied beyond reasonable doubt that the act that caused those injuries was non-accidental in the sense that it did not occur without human intervention. The deceased was too young and inactive to have caused the injury himself. Dr Donald, who was called in the case for the accused, described the "impact-derived acceleration forces" and "significant flexion [and] extension of the head" in addition to the impact that "would be adequately explained by shaking". There is in my view no scope for a reasonable doubt that the deceased's injuries were inflicted by the employment of a physical mechanism falling within such descriptions. Whilst the exact act may not be discoverable, there is to my mind no scope for a reasonable doubt about the type of act concerned.

191 There is also little doubt that there are uncertainties about what injuries were contemporaneous with the injuries that caused the death of the deceased. These uncertainties, however, are irrelevant. The Crown case is effectively limited to reliance upon the infliction of a brain shearing injury as sufficient to cause death. I have found that such an injury did cause death. The presence or absence or contemporaneity or otherwise of one or some other injury is of no consequence in circumstances where the brain injury alone was a sufficient cause. The fractured bones and subdural haematomas occurred at other times. The fact that they bespeak other violent acts or abusive treatment is undoubtedly troublesome, but does not diminish the causal potency or significance of the ultimately fatal insult. The retinal haemorrhages may have occurred as the result of the infliction of a severe rotational force or they may not. They may have occurred at the time of the infliction of the injury causing death or they may not. Once it is accepted, as I have accepted, that the act that caused the relevant fatal injury was as I have indicated, the significance of the retinal haemorrhages as evidence tending to support a particular occurrence in preference to another subsides.

192 There are uncertainties about when the acts that caused the death of the deceased were occasioned. These uncertainties flow from a combination of two competing factors. First, the medical controversy about whether or not the deceased would have or must have become instantly unconscious at the moment that he sustained the shearing injury to his brain or whether or not it would have been possible that unconsciousness may have been delayed for some period of minutes or hours following that event. Secondly, the evidentiary controversy between what the accused said he was doing when the deceased is said to have gone "soft" (presumably unconscious) in his arms and the uncontradicted medical view that nothing that the accused described doing to the deceased in the moments before that happened could have led to the shearing injury to the deceased's brain that caused him to lose consciousness. The reliability of the version given by the accused is very largely if not entirely dependent upon acceptance of the medical opinion that allows for the lapse into unconsciousness following a brain shearing injury to occur other than instantaneously or simultaneously. Nothing said by the accused or by his brother-in-law about the events leading to the deceased becoming soft involves any act by the accused that was sufficiently violent to cause the relevant injury.

193 Neither the accused's version nor Hartanto's version explains the circumstance that caused the injury. If the accused and Hartanto are accepted then the injury must have occurred earlier. Neither version describes any sufficient level of force. Earlier infliction of the injury would only have been possible if the injury and the unconsciousness that the accused appeared to describe occurred at different times. If this were not medically possible, then the accused's version would have to be rejected. However, rejection of the accused’s version for this or any other reason is not necessarily inconsistent with innocence. The infliction of the relevant brain injury at an earlier time does not in those circumstances point only in the direction of the accused.

194 In the final analysis the medical controversy turned out to be less controversial than would appear to have been anticipated. Dr Donald was of the view that at least two hours could have separated the infliction of the shearing injury and a state of unconsciousness from which the deceased did not recover. Dr Moran ultimately agreed with that proposition. Dr Wilkins was unable to exclude two hours. Dr Norrie would appear to have accepted as much as one hour as possible. Any of these periods was long enough to account for Hartanto's absence from the house with his wife when only the accused and his wife were present with the deceased. The deceased could well have sustained the relevant injury at any time during the two-hour period before the accused and his wife decided to take the child to hospital. There is in my opinion no medical controversy that adversely affects this analysis.

195 It was finally submitted on behalf of the accused that uncertainty remains about whose act or acts caused the injury that led to the death of the deceased. Howsoever one views the circumstantial material that can be factored into this inquiry, there is no one circumstance or combination of circumstances that points only in the direction of the accused. There are only two possible sources of the injury to the deceased. There is no evidence that points persuasively at the accused as opposed to the accused's wife. For example, the existence of evidence that the injuries to the deceased were of a type, or had been delivered with such force, that could only have been caused by a male, would suggest, according to the common course of human affairs, that the occurrence of such a proved fact would be so highly likely to be accompanied by the occurrence of the fact to be proved, that anything other than the guilt of the accused could not reasonably be supposed. No evidence of this type exists.

196 Nor are the factors upon which the Crown relies of this type. The accused's wife was under the same physical and emotional pressures as the accused. She was also presumably without sleep as the result of the deceased himself not sleeping through the night and feeding irregularly. She was subject to the same poverty of family support as the accused. She was also caring for the deceased and had access to him in much the same way as the accused. No evidence of anything attributed to her amounts to an unambiguous denial of involvement in the cause of the deceased's injuries. No so-called admission by the accused of rough handling of the deceased is capable of explaining the cause of the injuries or of proving who did cause them. Prior injuries to the accused are in the same category. No aggregation of proved circumstances, considered in sequence or in combination, is capable of excluding at least one other equally available alternative hypothesis. The precise submission made on behalf of the accused in this respect was that as "there [were] at least two possible suspects for the perpetrator of the act or acts which caused death, the accused and his wife, [I] could not be satisfied beyond reasonable doubt of the guilt of the accused".

197 This includes the so-called admissions made by the accused at the hospital. The accused admitted to certain behaviour that he would not usually have engaged in, including picking the deceased up very quickly from his bassinette without supporting his head. He also spoke of hitting the child on his stomach and buttocks. At the point where the accused was revealing these things and referring to his arrest and punishment, the deceased was in a grave medical condition and his prognosis was either uncertain or very poor. No information permitting the accused or his wife accurately to comprehend the extent of the child’s injuries and prognosis had been provided. Indeed, some insight into this is available from that part of the accused's ERISP on 24 March 2006 when it is revealed to the accused for the first time that the deceased had a fractured skull. The transcript of that event is reproduced above at par [28]. It shows in my opinion a genuine surprise and alarm on the part of the accused.

198 In this context I consider that the circumstantial force of the so-called admissions is small. The reactions of the accused and his statements of what could be characterised as some form of remorse are explicable by alternative hypotheses entirely consistent with innocence. It is not difficult to imagine that there may have been another reason, or other reasons, why the accused would make statements appearing to draw attention to himself that were not in fact statements amounting to an admission of guilt. I agree with the Crown submission that the circumstances reveal a "clear indication of a form of behaviour which is acting out of frustration on a child in an extraordinarily inappropriate way", but precisely whose behaviour is by no means sufficiently revealed.

199 It follows that I am not satisfied beyond reasonable doubt that the accused is the person who inflicted the injuries to the deceased that ultimately led to his death.

200 Counsel for each of the parties made submissions with respect to the mental element of the offence of murder and the alternative verdict of manslaughter. The Crown's submission included the following:

"The accused stands charged of murder. I cannot take your Honour to any intent to murder demonstrated, other than by the scale of the actual injury itself. There are no admissions of intent that I have been able to find in the material placed before your Honour, although there are admissions, as previously discussed, of anger. So in relation to the combination of admissions of anger and the inherent intended consequence of the mistreatment of this child, it seems to me that that perhaps remains open for consideration on the head of recklessness in relation to indifference to human life, but there is a clear and strong case on manslaughter."

However, by reason of the conclusion that I have reached with respect to the infliction of the injuries that caused the death of the deceased, it is unnecessary to consider these matters.

201 Jeong Ming Foo on the charge that on 31 August 2006 at Dundas in the State of New South Wales you did murder You Qi Foo I find you not guilty. I direct that my verdict be entered.

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Citations

R v Jeong Ming Foo [2008] NSWSC 587

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Dyers v The Queen [2002] HCA 45

Martin v Osborne [1936] HCA 23

CITATION:	R v Jeong Ming FOO [2008] NSWSC 587
HEARING DATE(S):	15, 16, 19, 20, 21, 22, 23, 26, 28 and 30 May 2008
JUDGMENT DATE :	12 June 2008
JUDGMENT OF:	Harrison J
DECISION:	Verdict of not guilty
CATCHWORDS:	CRIMINAL LAW – Murder – s 132(1) Criminal Procedure Act 1986 - election by accused for trial by judge alone – 11 week old victim - son of accused – deceased died from diffuse axonal injury to brain caused by non-accidental acceleration/deceleration forces from shaking or impact – circumstantial case – reasonable alternative hypothesis - degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved not so high that the contrary could not reasonably be supposed – no satisfaction beyond reasonable doubt that the accused was the person who inflicted the injuries to the deceased that ultimately led to his death – not guilty verdict
LEGISLATION CITED:	Criminal Procedure Act 1986
CATEGORY:	Principal judgment
CASES CITED:	Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
PARTIES:	Crown Jeong Ming Foo (Accused)
FILE NUMBER(S):	SC 4038/2007
COUNSEL:	W L Robinson QC (Crown) P R Boulten SC (Accused)
SOLICITORS:	Director of Public Prosecutions (Crown) Murphy's Lawyers Inc (Accused)